On Thursday, CAAF affirmed the findings and sentence in Holsey, No. 12-0957/AR, by summary disposition.

Holsey was orally argued on 22 January (Zack’s oral argument preview here). CAAF held that even if the military judge abused his discretion by rejecting the accused’s guilty plea to unauthorized absence, the error was harmless. CAAF explained:

Even if the military judge had accepted Appellant’s guilty plea to unauthorized absence, the Government charged, was prepared to move forward on, and did in fact prove the greater offense of desertion. Furthermore, Appellant’s attempt to plead guilty to unauthorized absence, his cooperation with the Government in returning to his unit, and his acceptance of responsibility were all matters in mitigation before the military judge for sentencing purposes.

CAAF returns from its winter break from oral arguments next week, beginning at 9:30am on Tuesday, January 22, 2013, with oral argument in United States v. Holsey, No. 12-0597/AR. The court granted review of one issue:

Whether the military judge abused his discretion when he rejected Appellant’s plea based upon a necessity defense that is neither recognized in military courts nor applicable to Appellant’s case.

Cue up Yakety Sax. On the eve of his trial by court-martial (for charges otherwise unrelated to this case) in January, 2007, Private First Class Holsey, U.S. Army, absented himself from Fort Eustis, VA, and drove to Miami, FL, where he remained until he was arrested two and a half years later. He was then charged with desertion with intent to remain away permanently in violation of Article 85 (it’s not clear what happened to the other set of charges).

Then, before a military judge sitting as a special court-martial in June, 2010, he entered a naked (i.e., without a pretrial agreement) plea of guilty to the lesser-included offense of unauthorized absence. But the military judge rejected his plea after PVT Holsey said that he had called his unit prior to returning, but did not return at that time because he had custody of his children and no place to take them, and the military judge indicated that this might be a defense of necessity, to which the Appellant agreed. The case then proceeded immediately to trial, where the Government called few witnesses, the Defense seemingly failed to make a number of objections or request a continuance to prepare its case, and the military judge found PVT Holsey guilty of desertion, and then sentenced him to reduction to E-1, confinement for 11 months, forfeitures for 11 months, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged, the ACCA summarily affirmed, CAAF granted review to determine if it was error for the military judge to reject PVT Holsey’s plea to the LIO, and then…

The Government agrees that the defense of necessity is not directly recognized in military law and that the military judge abused his discretion in rejecting the plea.

Gov’t Br. at 8. But, “[d]espite the military judge’s error, appellant was not prejudiced as the error did not have substantial influence on the findings.” Id. Of course, the Government can’t concede everything. If they did, we’d have nothing to write about.

The Government’s brief first emphasizes the concession, by arguing that a defense of necessity, while never explicitly rejected or recognized by CAAF, shouldn’t exist in the military (because “[t]he armed forces cannot afford to allow service members the discretion to act in their own best interest at the expense of their unit” (Gov’t Br. at 11-12)), and then by arguing that even if such a defense does exist, “the military judge failed to conduct an adequate factual inquiry to see if such a defense existed [in this case].” Gov’t Br. at 12. But then the brief turns to prejudice, and the Government argues that “appellant arguably benefited from the military judge’s error as not only was the government forced to establish all the elements of the offense, but the defense was able also to simultaneously present appellant’s willingness to admit guilt as a source of mitigation.” Gov’t Br. 15.

This concession moots a large part of the Appellant’s brief, but a reply brief gives some more insight into the trial: “The opportunity to repent [during sentencing] is not a substitution for adequate preparation and offering of a substantive defense to a contested charge.” Reply. Br. at 2. This implies that the Appellant’s trial defense counsel wasn’t prepared for trial, but there was no objection to proceeding immediately after the military judge rejected the guilty plea, nor was there a request for a continuance. Moreover, it’s hard to accept the Appellant’s invocation of the possibility of a “substantive defense,” when both sides agree that the military judge was wrong to reject the guilty plea (meaning that both sides agree that it wasn’t a substantive defense).

What’s not particularly clear from the briefs is the Government’s plan for this trial absent the military judge’s rejection of the plea. My gut tells me that the Government was not going to proceed on the greater offense once it secured the Appellant’s plea to the LIO. Assuming that’s true (a big assumption), then the prejudice seems pretty plain. But the briefs give the impression that there’s just no record of what could have been, and that’s going to count against the Appellant.

This case certainly looks like an unlikely vehicle for CAAF to explore the availability of a defense of necessity under the UCMJ, and there’s not much of a conflict left on the question of whether the military judge erred in rejecting the plea. That leaves only prejudice, and I think it’s a longshot for the Appellant.

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